Much will be written about Obergefell v Hodges, the momentous decision of the US Supreme Court endorsing a constitutional right to same-sex marriage, but in this short blog post I will limit myself to one aspect of the judgment: does it constitute unconstitutional constitutional change?

It may seem a strange question to ask about a judgment of a supreme court with a recognized broad power of judicial review and yet my prediction is that at least some critics of Obergefell will portray it as just that – unconstitutional change in American constitutional law (some already have – if not in these exact words – e.g., Ryan Anderson and David Upham on SCOTUSblog). Reading the dissent penned by Chief Justice John Roberts, one can hardly escape an impression that this is what Chief Justice accuses the Court’s majority of (see, e.g., his dissent at 2-3). I do not think that as a matter of positive law this particular charge ultimately succeeds, but this is not a claim I shall hazard to defend fully in such a short text.

Instead, I want to sketch the framework in which the title question could be considered and to flag the major difficulties that await anyone who would like to look for an answer. To do that, I will first turn to the issue whether Obergefell brings about a constitutional change and only then say something about how could such change be unconstitutional.

Obergefell: Constitutional Change?

If we accept (as I do) that ‘constitutional change’ refers to changes in constitutional law, short of textual amendment, then in one sense Obergefell obviously brings with it a constitutional change. Before the case was decided there was no Supreme Court precedent directly recognizing a fundamental constitutional right to same-sex marriage. Today, there is one.

However, identification of legal change brought about by adjudication is a tricky matter. It is often the case that the judges present their decision as declarative of the law as it already is. The majority opinion written by Justice Kennedy may be read to be doing just that: applying a pre-existing fundamental right to marriage in changed social circumstances (see, e.g., at 18-19). In other words: the law itself does not change – only the extra-legal considerations that, according to the law, affect the law’s application undergo change.

One alternative is to claim that any extra-legal standards or circumstances the law refers to become part of the law. Once the law settles on one understanding of them, any future change in that legally recognized understanding means legal change (think, for example, of changing understandings of ‘cruel and unusual’ punishment).

To make things worse, all those perspectives have a good claim to be considered as ‘legal’. I suggest that in the case of Obergefell an account in terms of constitutional change is likely to prevail both among the critics and the supporters.

Obergefell: Unconstitutional Change?

Even if Obergefell constitutes constitutional change, how could one say that the change was unconstitutional? Uncontroversially, Obergefell is a decision of the Supreme Court in a sort of the case that the court normally has jurisdiction over – as Chief Justice Roberts notes in his dissent (at 3).

However, at the same time Chief Justice admonishes the majority for overstepping the limits of the Court’s legal power to adjudicate (as do, in stronger words, Justice Alito and Justice Scalia in their dissents – see, e.g, Alito at 7 and Scalia at 5). Chief Justice does not make a distinction, I believe important, between legal powers to adjudicate (‘resolve legal disputes’) and legal powers to change the law. The latter, according to HLA Hart, are conferred by rules of change, distinct from rules of adjudication (Hart 2012, at 95-96). Arguably, the US Supreme Court does have a limited legal power to change the law, but such power is even more restricted then its power to adjudicate.

The question is: what happens if the Court oversteps the limits of its power to change the law? (Bear in mind that the decision may be perfectly within limits of the Court’s power to resolve a legal dispute inter partes). Does it follow that the purported change is unconstitutional?

My answer is: no. It is still possible that a legal system recognizes as valid changes in law brought about without anyone exercising properly a legal power to change the law. An obvious example is legal custom: it changes when relevant practices change, not (at least not directly) by exercises of powers to change law.

In the US case, it very well may be that there are customary rules of recognition of valid law (to employ another term coined by HLA Hart; Hart 2012, at 100-103) that identify at least some judgments of the Supreme Court as having a law-changing effect if certain conditions obtain (for example, the decision can be taken as a good faith attempt at interpreting the Constitution; see Alexander and Schauer, 2009, at 190-191). Such rules of recognition may operate irrespective of the issue of existence and proper exercise of legal powers to change the law. And if such rules of recognition work for Obergefell, then it means that any legal change brought by that case comes from within the legal system and is not some kind of a legal revolution. Hence, I would consider the change in question as constitutional.

However, if a change in the rules of recognition themselves has to take place for the Court’s decision to have a law-changing effect, then such change is unconstitutional as it was not the sort of thing the legal system recognized as a source of new law before the decision was made. Arguably, this happened in the case of Marbury v Madison and perhaps also at some later times in American history.

It would not affect my use of the concept of constitutionality even if someone were to show that – apart from the limits of legal powers to adjudicate and to change law – the Justices of the Supreme Court have a legal duty to forebear from overstepping those powers and that the majority in Obergefell breached it. Such duty may exist even if there are no legal sanctions for violating it. My position is that whether a change in constitutional law is constitutional or not depends entirely on whether it was recognized as valid under the rules of recognition at the time of change. The alternative notion of ‘constitutionality’ – one that is offended by overstepping legal powers or breaching legal duties – may be useful for holding to account (legally or politically) the agents of change, but should not be considered as dispositive of constitutionality of the legal change itself.

This analysis is intended to be applicable to other court decisions as well. One may want to ask the same questions about Brown v Board of Education, Roe v Wade or even about cases from other jurisdictions – think, for example, Dosso (Pakistan, 1958) or Madzimbamuto (Rhodesia, 1968). All these cases have been criticized at some time as overstepping the limits of judges’ legal powers. But even if such an argument is successful, for example, in respect to Dosso where the Supreme Court of Pakistan upheld validity of a coup d’état (clearly illegal under pre-coup law) or in respect to Roe v Wade (criticized along similar lines as Obergefell), it does not follow that both cases should be considered as cases of unconstitutional change in law.

In Dosso, acceptance of the law-changing result of the case arguably required a shift in the fundamental practices of recognition in the Pakistani legal system. Hence, the legal change resulting from Dosso may be properly considered as coming from outside of the legal system and therefore as unconstitutional. I would suggest that no such shift was needed in the case of Roe v Wade – there, the law-changing result was accepted because it was already the case as a matter of US law (before Roe) that at least some of the Supreme Court’s decisions have law-changing effect (in other words, the rule of recognition already recognized this kind of judicial decision as a source of new law).

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